Legal thoughts, since 2005.

Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Another New York court weighs in on access to cell phone geolocation data

Last week I wrote about a case that I came across while conducting research for the annual update of the Thomson Reuter’s substantive criminal law book that I co-author, “Criminal Law in New York.” That case, People v. Jiles, 158 A.D.3d 75 (4th Dept. 2017), concluded that a warrant was not needed to obtain historical cell phone records in order to view a user’s location data. (Notably, the holding in Jiles was contradicted by the conclusion reached in a subsequent United States Supreme Court decision, Carpenter v. U.S., No. 16-402, 585 U.S. ____ (2018), which I wrote about in this column in July).

In conducting my annual research, I encountered another interesting case addressing a similar, but slightly different issue: People v. Gordon, 58 Misc. 3d 544 (NY Sup. Ct. 2017). The question in this case was whether the pen register statute applied to the use of cell site simulator to determine a suspect's locationvia geolocation data obtained from a cell phone.

The defendant in this case was charged with a number of different crimes, including attempted murder in the second degree. While investigating the case, the police sought to locate the defendant using his cell phone and applied for a judicial pen register/trap and trace authorization for the defendant’s cell phone, and specifically requested to use a cell site simulator.

The request was granted, and included use of the cell site simulator. The defendant was located shortly thereafter and arrested. He filed a motion to suppress the results of the information gleaned from the cell site simulator on the ground that it was unlawfully obtained.

At the outset, the court examined the pen register/trap statute, New York's CPL Art. 705.00, noting that its intent is provide law enforcement with limited access to specific cell phone data, namely “the numbers dialed or otherwise transmitted in outgoing and incoming calls.” The court noted that unlike federal law, which was recently expanded, it does not “does not authorize the gathering of location information using a cell phone's Global Positioning system (GPS), nor does it authorize the gathering of additional information, that might include the content of a phone's calls or text messages by the use of a pen register and/or trap and trace order.”

Next, the court explained that due to the strictly limited nature of the information obtained from pen register/trap devices, law enforcement need only show reasonable suspicion in order to obtain a judicial order under the statute. The rationale behind the lower standard of proof is that “pen register/trap and trace devices only record the phone numbers dialed-outgoing or incoming-and do not disclose more than what phone users voluntarily convey to the telephone company in the ordinary course of business.”

The court then compared the type of data obtained from pen register/trap devices to the more intrusive information collected by GPS devices. It explained that because of the increased level of intrusiveness, the New York Court of Appeals has concluded that the New York State Constitution requires law enforcement to make a showing of probable cause in the absence of exigent circumstances prior to a warrant being issued for the use of a GPS tracking device.

Next the court turned to an examination of how cell site simulators work, explaining that cell site simulators collect information from a specific device rather than a cell phone provider. According to the court, “(i)n addition to downloading information from all the cellular phones located in the area, a cell site simulator can be used to locate a specific cellular phone when the phone owner's phone number is known, but not the location…” and maybe even be able to “obtain and record a wide array of data from an individual's cell phone, including highly precise real time cell phone location and the contents of voice and text communications.”

The court granted the defendant’s motion to suppress concluding that cell site simulators were more akin to GPS devices given the invasive nature of the information collected by cell site simulators and thus “the use of a cell site simulator intrudes upon an individual's reasonable expectation of privacy, acting as an instrument of eavesdropping and requires a separate warrant supported by probable cause rather than a mere pen register/trap and trace order such as the one obtained in this case.”

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